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Tag Archives: intellectual property

On October 5, 2015, the twelve trade ministers of the Trans-Pacific Partnership Agreement announced that an agreement had been reached after five years of negotiations. The Trans-Pacific Partnership Agreement is a large, comprehensive regional trade agreement in Asia and the Pacific between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.

The press conference announcing a deal had originally been scheduled for Saturday, October 3, before being delayed several times through Sunday reportedly over obstacles concerning agreements on provisions regarding dairy and protections for “biologic” pharmaceutical products.

The New York Times reported that the text of the final agreement will not be made available for another month. No official release of any of the text of the TPP has been released to date, though there have been several leaks of various chapters including the Intellectual Property Chapter. It is disappointing that the lack of transparency continued throughout the negotiations, depriving the public of meaningful opportunity to discuss and debate the TPP on the merits of the texts.

While, based on the various leaks of texts, the copyright provisions and general intellectual property provisions have seen improvements since the United States’ initial proposal was leaked in 2011, there are still several areas of concern including around copyright term (no details regarding the agreed to term have been released as of yet, but the most recent leak revealed discussions over copyright terms of life plus 50, 70 or 100 years) and technological protection measures. Additionally, while the agreement contains positive language regarding limitations and exceptions, this language appears to be permissive rather than mandatory, in contrast with the provisions granting rights to rightsholders. (For more, based on the August 2015 leak, see this blog post.)

The final language of the TPP will soon be concluded and each country will then need to go through its own domestic processes to pass the agreement. In the United States, the TPP will go through the “fast track” authority passed by Congress earlier this year, which includes a 90 day waiting period after the Obama Administration sends the TPP to Congress for approval. Depending on when the TPP — which has been a controversial issue — is sent to Congress, a vote could come during the height of the United States’ election season. Canada is currently holding its elections, set for October 19, 2015. The new Parliament in Canada, once in place, will debate the TPP and vote on the agreement. Other parties in the agreement will also hold elections over the next year, which could impact both the timing of any final approval as well as substantive debate of the TPP in these countries.

On February 5, 2015, ARL, together with ALA and ACRL, sent a letter to Senators Hatch (R-UT) and Wyden (D-VT) expressing concerns over “fast track” trade promotion authority. Under “fast track,” Congress grants the President authority to sign trade agreements and Congress is only able to approve or reject the agreement in a straight up-down vote, meaning that it cannot amend this agreement. Such a process limits Congress’ ability to meaningfully weigh in on the agreement.

Using the Trans-Pacific Partnership Agreement (TPP) as an example, the letter highlights the inequities surrounding access to information about the substance of the agreements. While the negotiations are conducted in secrecy and the general public is not permitted to see text, cleared advisors are permitted to view proposals and make substantive comments through “trade advisory committees.” Members of the intellectual property trade advisory committee represent large corporate interests; current members include, for example, representatives from the Recording Industry Association of America (RIAA) and the Copyright Clearance Center (CCC). Past representatives include Time Warner, the Association of American Publishers (AAP) and the Motion Picture Association of America (MPAA). While these corporate interests are well represented, the general public has had to rely on leaks in order to view text. The letter points out, “Policy should not be made in secret, with the general public kept in the dark about what effects the agreement will have.”

The letter also notes concerns that the comprehensive intellectual property chapter included in the TPP could contain provision requiring changes to current law, or locking-in undesirable provisions of U.S. law which would make it difficult to amend the law without violating the agreement. One such harmful provision is the U.S. copyright term of life plus seventy years, which was recently reported as the term of protection TPP negotiators have agreed to. This lengthy term has been problematic, contributing to the orphan works problem and hampering the public domain.

The letter concludes:

Given the impacts that agreements like the TPP and TTIP will have, Congress should ensure that it does not delegate its authority to the Executive Branch. Congress must be an active participant in reviewing these agreements before accepting their content and should not grant fast track authority, at least with respect to intellectual property provisions in these agreements. Alternatively, if legislation on fast track does include language on intellectual property, this language must protect the careful balance that exists in US law. Libraries, and the vast public we serve, depend on a balanced copyright system, including important limitations and exceptions such as fair use and the first sale doctrine. Any language granting fast track authority implicating intellectual property must recognize the importance of limitations and exceptions.

“I think the basic concept is that you want to have sufficient IP, and–whether patents or copyrights–that you are continually encouraging and rewarding innovation and creativity. But you don’t want those structures so tight, in terms of protecting that intellectual property, that that ends up being actually an inhibitor to people getting good information, folks coming up with new uses for existing information.” (emphasis added)

Unless otherwise noted, posts after January 10, 2014 are written by Krista L. Cox, Director of Public Policy Initiatives at ARL. Some of the content here will not be written or created by ARL, but rather will be collected from elsewhere on the web. Quotation does NOT imply endorsement!

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02/19/2019 at 3:09pmI first saw this discussed on Twitter, now WaPo has an article on Justice Thomas' concurrence in a denial of cert, but that urges reexamining the 1st & 14th Amendments in libel cases (i.e. a reexamining of NYT v Sullivan) https://t.co/lCwY85MEO0